ACHR REVIEW[The
weekly commentary and analysis of the Asian Centre for Human Rights
(ACHR) on human rights and governance issues]

Embargoed
for 26 October 2005

Review:
96/05

The
Bindunuwewa Massacre in Sri Lanka: A Cry for Justice

Yesterday,
on the occasion of the 5th commemoration
day of the Bindunuwewa Massacre, Asian Centre
for Human Rights released its report, “The Bindunuwewa Massacre
in Sri Lanka: A
Cry for Justice” andmade confidential
“Report
of the Presidential Commission of Inquiry into
incidents that took place at Bindunuwewa Rehabilitation
Centre, Bandarawela on 25 October 2000”
headed by Justice PHK Kulatilakapublic. In the face of increasing
international criticism for the custodial massacre
of 28 Tamil youth between the ages of 14-23 years
and injury of 14 other

Courtesy:
AHRC, Hong Kong

Tamil youth, on 8 March 2001 President Chandrika
Kumaratunga set up the Presidential Commission of Inquiry.
The report was reportedly submitted in early 2002 but
President Chandrika Kumaratung
failed to make the report public. In the meanwhile,
all accused of the massacre have been acquitted by the
Supreme Court of Sri Lanka on 21 May 2005.

Although Justice PHK Kulatilaka
Presidential Commission of Inquiry was mandated to inquire
extraneous issues and not to find the truth and prosecute
the culprits, its report is important in more than one
way. No other massacre so devastatingly illustrates
the collective failure of the institutions of the Sri Lankan state
to provide justice to the Tamil minorities.

First, unlike other
massacres in the Northern and Eastern parts of Sri Lanka,
the killings of the inmates at the Bindunuwewa Rehabilitation
Centre took place within the protective custody of the
State. About 60 fully armed policemen remained mute
witness to the attacks on the inmates by a Sinhala mob
whom the Supreme Court of Sri Lanka had the audacity
to describe as “peaceful Satyagrahis” demanding
removal of the camp. The failure of the police was palpable.
The conclusions of the Justice Kulatilaka Commission
of Inquiry on the police conduct were unambiguous:

“No
meaningful steps had been taken by the police to prevent
the mob from … coming into the Rehabilitation Centre.

Once
the mob invaded the Centre, acts of setting fire to
the buildings, attack on the inmates and the massacre
of inmates continued unabated while the police were
just looking on.

The
police had opened fire on the unarmed inmates who were
running for protection towards the police trucks parked
outside the main gate, thereby causing death of one
inmate and injuring two others.

The
police (60 armed personnel) had failed to arrest any
offender even though the assailants were seen moving
about freely carrying weapons while the policemen were
standing nearby.”

Second, Bindunuwewa
Massacre was the only incident which reached upto the
level of Supreme Court of Sri Lanka. Regretablly,Sri
Lanka once again failed the ethnic minorities. There
has not been any trial of the perpetrators of the anti-Tamil
riots in early 1980s. After 19 years, in July 2002,
President Chandrika Kumaratunga announced the formation
of a three-member Truth Commission to investigate incidents
of ethnic violence between 1981 and 1984, including
anti-Tamil riots in July 1983 that killed nearly six
hundred people.

This report was reportedly
made public on 24th April 2003.

There was no trial for the
killings of the 184 Tamil civilians at Kokkuvil and
surrounding areas despite the fact that the Human Rights
Task Force appointed by President Ranasinghe Premadasa
and the Special Presidential Commission to Inquire into
Disappearances in the East under Justice K. Palakidnar
recorded evidence about the Sathurukkondan -Kokkuvil
massacre.

The Inquiry Commission into
the Kokkadicholai massacre of January 1991 was empowered
only to inquire into the incident and recommend compensation
and prosecute the culprits.

The trial of the Kumarapuram
massacre on 11 February 1996 has been pending at the
Trincomalee High Court. All the accused have been released
on bail while one of the accused soldiers died. All
material evidence, including weapons allegedly used
in the killing of Tamil civilians in the Kumarapuram
massacre, were destroyed when the office of the Government
Analyst in Colombo was gutted by fire in 2004.

Third,
the trial of the accused of the Bindunuwewa massacre
exposes the biases which plague the administration of
justice in Sri Lanka. The Attorney General filed wrong
indictments by clubbing the accused civilians and the
police together and charged them for unlawful assembly.
It was a case of mixing oranges with apples, as the
police were responsible for taking appropriate action
against unlawful assembly. Without establishing the
conspiracy angle, the court was expected to reject the
charge. The Supreme Court justified erasing of the evidence,
which were so “done
to preserve peace in the area”. The Supreme Court judges
also gave more importance to the testimonies of the
police and Sinhala witnesses than the testimonies of
the victims who were ethnic Tamils. The Supreme Court
completely ignored the fact that photographs
taken by the police after the massacre clearly showed
senior police officers milling around the camp alongside
armed attackers, as a dead or injured detainee lies
at their feet. The Supreme Court also ignored one important
observation of the High Court that to be able to burn
the bodies of many inmates beyond recognition by the
mob would have required the acquiescence of the police.
The case against the accused had failed even before
the indictments were filed - the fact that 60 fully
armed policemen failed to arrest a single socalled peaceful
Satyagrahi meant that there was no single accused
and witness

.

Fourth,
the Bindunuwewa massacre also exposes ineffectiveness
of the National Human Rights Commission of Sri Lanka.
It failed to bring out its final report into the Bindunuwewa
massacre and it only served to deflect international
criticisms against the government.

Fifth,
the failure of the Sri Lankan government to make the
Presidential Commission of Inquiry Report public there
is no intention even to initiate disciplinary proceedings
against the policemen who were indicted by the Presidential
Commission of Inquiry for, what the Commission termed
as, “indefensible inaction and attitude at the time
of the incident”. After all, one of the main accused,
then Headquarters Inspector Seneviratne who was indicted
by the Presidential Commission, instead of being taken
to task has been rewarded and is now the Senior Superintendent
of Police of Traffic at Fort Police Station.

Sixth,
Sri Lanka often boasts of its cooperation with UN human
rights mechanisms. The Supreme Court having acquitted
the four accused sentenced by the Trial-at-Bar of the
High Court, there is no other domestic mechanisms to
challenge the validity or procedural fairness of the
acquittal. It is a fit case to be taken up with the
United Nations Human Rights Committee under the First
Optional Protocol to the International Covenant on Civil
and Political Rights to
which the Sri Lankan is a ratifying State party.

The Sri Lankan government
suffers from tunnel vision with regard to the Tamil
problem. It believes that the problem can be resolved
by cooperating with UN mechanisms and focusing on the
brutalities of the Liberation Tigers of Tamil Eelam
(LTTE). It fails to realize that the resolution of the
conflict goes beyond signing an agreement with the LTTE.
It is about providing justice and accountability, and
restoring the faith of the Tamil minorities in the mechanisms
or the pillars of the Sri Lankan state. And it requires
strong political will against the rightwing.

All successive governments
of the past have failed to show courage. And the future
looks equally bleak.